United States v. James Corley , 255 F. App'x 454 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13018 NOV 21, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00256-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES CORLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(November 21, 2007)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
James Corley appeals his conviction, pursuant to a plea agreement, for
assaulting a former deputized federal law enforcement officer with a deadly or
dangerous weapon, or with resulting bodily injury, a violation of 18 U.S.C. §§
111(b) and 115(a)(2). For the first time on appeal, Corley argues that the district
court erred during the plea colloquy by failing to advise him of his rights regarding
compelling the attendance of witnesses and presenting evidence, and the court’s
authority to order restitution, which he was ordered to pay in the amount of
$5,097.04.1 After careful review, we affirm.
Generally, the district court's “factual finding that the requirements of [Rule]
11 were satisfied when it accepted the defendants’ pleas is subject to the clearly
erroneous standard of review.” United States v. Lopez, 907 F.2d 1096, 1099 (11th
Cir .1990). Corley, however, did not raise his Rule 11 argument in the district
court, either by objecting or by moving to withdraw his guilty plea. Cf. United
States v. Moriarty, 429 F.3d 1012, 1018 n. 2 (11th Cir. 2005) (per curiam)
(observing that to preserve a Rule 11 error a defendant should file a motion to
withdraw the guilty plea in district court). Constitutional objections and alleged
violations of Rule 11 that were not raised before the district court are reviewed for
plain error only. See id. at 1018-19. To establish plain error, a defendant must
show (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
1
Based on our own thorough review of the plea colloquy, we address only these argu-
ments, since we find it clear that the district court determined there was a factual basis for the
plea, ascertained that Corley understood the facts necessary to support the guilty plea, and
addressed Corley personally to determine that his plea was voluntary.
2
See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 545
U.S. 1127 (2005).
The facts relevant to our analysis are these. On November 28, 2006, Corley
was indicted on one count of assaulting a former deputized federal law
enforcement officer with a deadly or dangerous weapon, or with resulting bodily
injury (Count One), a violation of 18 U.S.C. §§ 111(b) and 115(a)(2), and one
count of attempted murder of a former federal officer (Count Two), a violation of
18 U.S.C. § 1114. He pled guilty to Count One, and the government agreed to
dismiss Count Two.
During the subsequent plea colloquy, the district court asked Corley if he
had reviewed the indictment with his attorney and if he fully understood the charge
against him, and he responded affirmatively to both questions. He further stated
that he was satisfied with the representation and advice given to him by defense
counsel. The government then informed the court that the maximum penalty was
20 years’ imprisonment, a $1 million fine, and 5 years’ supervised release. Corley
indicated that he understood the maximum penalties, as designated by the
government, and had reviewed the Sentencing Guidelines with his attorney. The
district court then informed Corley that he had a right to plead not guilty and
persist in that plea, and he then would have the opportunity to cross-examine the
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government’s witnesses, be provided with assistance of counsel, and present
witnesses on his own behalf. Corley responded that he understood that he was
giving up the right to go to trial, and all of the associated rights, by pleading guilty.
The government then summarized the factual basis for the plea as follows.
On October 26, 2006, Corley assaulted a former deputized federal law enforcement
officer, Barry Foley, by beating him in the head and face, and by cutting his head
and face in numerous places with a sharp object. Over ten years earlier, in May
1996, Foley, who at that time was a local police officer in Saraland, Alabama,
assisted United States Postal Inspectors in tracking and ultimately confiscating,
after a controlled delivery to Corley, a package that was shipped through the U.S.
Mails and contained marijuana. On the evening of October 26, 2006, Corley
recognized Officer Foley in the Feed Store Bar in Axis, Alabama. After
confirming Foley’s identity, Corley followed Foley into the bar’s bathroom, where
he assaulted Foley. Thereafter, Corley followed Foley into the parking lot and
attacked him again, including hitting him with a shiny object until Corley lost
consciousness.
The government stated that it could prove the foregoing facts, among others,
if the case proceeded to trial. Based on these facts, the government said, Corley
had assaulted a formerly deputized federal law enforcement officer with the intent
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to retaliate against the officer based on his past performance of his official duties.
When the district court asked Corley if he agreed that the government could prove
those facts against him, defense counsel replied “[n]o,” stating that there was a
disagreement over whether the government could prove that the former officer was
deputized on the day when he participated in the 1996 sting. Counsel conceded,
however, that the government would be able to prove that Foley was formerly
deputized and had been assisting a formally deputized officer, which satisfied that
element of the crime charged. Counsel also argued that although there was bodily
injury, the government could not prove a weapon was involved in the assault or the
extent of the bodily injury to Foley.
The court found that although Corley contested the extent of the bodily
injury, Corley “admitted the essential elements of the offense.” Corley then stated
that he was pleading guilty to the charge, and the district court noted that he was
“fully competent and capable of entering an informed plea.” The district court also
found that the plea was knowing, voluntary, and supported by “an independent
basis in fact containing each of the essential elements of the offense.” Finally, the
district court noted that there would be certain factual issues to be determined
during the sentencing hearing. At no point did Corley object based on Rule 11.
5
Thereafter, Corley was sentenced to 151 months’ imprisonment, and ordered
to pay $5,097.04 in restitution. Again, at no point did he assert an objection to the
manner in which the district court had conducted the plea colloquy, nor did he
lodge an objection based on Rule 11 or seek to withdraw his guilty plea. This
appeal followed.
Corley now argues that the plea colloquy was defective in a number of ways.
A defendant who seeks reversal of his conviction after a guilty plea, on the ground
that the district court committed plain error under Rule 11, must show a reasonable
probability that, but for the error, he would not have entered the plea. United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). “A defendant must thus
satisfy the judgment of the reviewing court, informed by the entire record, that the
probability of a different result is ‘sufficient to undermine confidence in the
outcome’ of the proceeding.” Id. (internal citation omitted).
Pursuant to Rule 11, before the district court accepts a guilty plea, it must
address the defendant in open court to ensure that he understands various rights
and matters. Fed. R. Crim. P. 11(b)(1) and (2); United States v. Monroe, 353 F.3d
1346, 1350-51 (11th Cir. 2003). The three “core concerns” of Rule 11 are to
ensure that the defendant (1) was not coerced into pleading guilty; (2) understood
the charges against him; and (3) understood the consequences of his guilty plea.
6
Monroe, 353 F.3d at 1354. Among the matters about which the defendant must be
informed are his right “to testify and present evidence, and to compel the
attendance of witnesses,” “the court’s authority to order restitution,” and “the
nature of each charge to which [he] is pleading.” Fed. R. Crim. P. 11(b)(1)(E),
(G), and (K). Rule 11 further states, though, that “a variance from the
requirements of this rule is harmless error if it does not affect substantial rights.”
Fed. R. Crim. P. 11(h). In fact, this Court generally will uphold a plea colloquy if
it adequately addresses the three core concerns of Rule 11, even if the court failed
to address a specific Rule 11 matter. Monroe 353 F.3d at 1354. Moreover, during
Rule 11 proceedings, “matters of substance, not form, are controlling.” Id. at 1351.
Although the district court did not expressly inform Corley of his rights in
regard to two of the five errors that he asserts on appeal -- (1) his right to compel
the attendance of witnesses, and (2) the court’s authority to order restitution -- we
readily conclude that the district court’s colloquy adequately informed him of his
rights, consistent with Rule 11. The district court advised Corley of his right to
plead not guilty and go to trial, where he would be able to present witnesses on his
own behalf and cross-examine the government’s witnesses. Although the district
court’s colloquy did not follow the language of Rule 11 exactly, it certainly was
enough to cover the substantive information, that is, “core concerns,” of Rule 11.
7
Moreover, because the government informed Corley about the maximum penalty
associated with the charge, including a $1 million fine, Corley cannot show that his
substantial rights were affected by the court’s omission concerning restitution. See
United States v. Morris, 286 F.3d 1291, 1294 (11th Cir. 2002) (holding that,
although Rule 11 requires a court to explain a defendant’s liability for both fines
and restitution, “failure to do so does not impact a defendant’s substantial rights
where he was warned of a potential fine larger than the actual amount of restitution
ordered.”).
On this record, Corley has not shown error, let alone plain error, based on
the plea colloquy. Accordingly, we affirm.
AFFIRMED.
8